. the headline is that racial preferences and higher education definitely came under attack today. >> let's remind everyone, ten years ago, the u.s. supreme court upheld affirmative action, less than, 2003, what has changed since then? >> this case is factually similar to the university of michigan case nine years ago. what has changed is the court, justice sandra day o'connor wrote the majority opinion nine years ago upholding diversity as a compelling interest. o'connor is no longer on the court. today the person to watch is the justice anthony kennedy, not against the idea, but hasn't found the affirmative action program that is narrowly tailored enough for him to like it. >> what about the fact that justice elana kagan, she recused herself here, there could be a tie they could decide four justices one way, four another. what happens in that case? >> in that case, the previous precedent stands. so the university of michigan case from nine years ago would continue to be the law of the land if they ended up in a 4-4 tie. >> all right, joe johns, thank you very much. u.s. supreme court to